10.1 Part VII of the FOI Act sets out the Information Commissioner’s functions and powers in relation to review of decisions under the FOI Act. These functions and powers can also be exercised by the FOI Commissioner and the Privacy Commissioner, who also have the ‘freedom of information functions’ (ss 8, 11 and 12 of the AIC Act). In practice, it is anticipated that the FOI Commissioner will usually exercise the Part VII review functions.

What decisions can the Information Commissioner review?

10.2 A person who disagrees with an agency’s or minister’s decision following a request for access to a document may apply to the Information Commissioner for review under Part VII (IC review). It is not necessary to go through the agency’s internal review process first before applying for an IC review. However, the Information Commissioner is of the view that it is usually better for a person to seek internal review of an agency decision before applying for an IC review. An agency’s internal review process gives the agency an opportunity to reconsider the initial decision, usually at a more senior level, and the result may well meet the applicant’s needs in a shorter timeframe than is available in the IC review process. Internal review is not available if the decision was made by a minister or personally by the principal officer of an agency.

10.3 The Information Commissioner can review the following decisions by an agency or minister:

a refusal to extend the period for applying for internal review under s 54B (s 54L(2)(c))

an agency internal review decision made under s 54C (ss 54L(2)(b) and 54M(2)(b)).

10.4 The Information Commissioner may also review decisions that are deemed to have been made by an agency or minister where the statutory timeframe was not met. This may happen:

at first instance (following a request for access to information (s 15AC) or for amendment to a personal record (s 51DA)), or

following an application for internal review (where the original decision is taken to have been affirmed under s 54D).

10.5 Where a decision is deemed and the Information Commissioner has allowed the agency or minister further time to make an actual decision, and the agency or minister complies with the extension, the actual decision is substituted for the deemed decision for the purposes of the IC review (s 54Y(2)).

10.6 An ‘access refusal decision’ encompasses more than a simple refusal to grant access to a document. It is defined in s 53A to mean:

a decision refusing to give access to a document in accordance with a request

a decision giving access to a document, but not all the documents, to which the request relates

a decision purporting to give access to all documents to which a request relates, but not actually giving that access

a decision to defer access to a document for a specified period under s 21 (see Part 3 of these Guidelines) (other than a document covered by s 21(1)(d), that is, where Parliament should be informed)

a decision under s 29 relating to the imposition or amount of a charge (see Part 4 of these Guidelines)

a decision to give access to a document to a ‘qualified person’ under s 47F(5) (where disclosing the information to the applicant might be detrimental to the applicant’s physical or mental health or well-being – see Part 3 of these Guidelines)

a decision refusing to amend a record of personal information in accordance with an application under s 48 (see Part 7 of these Guidelines)

a decision refusing to annotate a record of personal information in accordance with an application under s 48.

10.7 An ‘access grant decision’ is defined in s 53B to mean a decision to grant access to a document where there is a requirement to consult with a third party under ss 26A, 26AA, 27 or 27A. The agency or minister will have decided that either the document is not conditionally exempt under s 47B (Commonwealth-State relations), s 47G (business documents) or s 47F (personal privacy), or if the document is conditionally exempt, access would not be contrary to the public interest (see Part 6 of these Guidelines).

10.8 A decision that an applicant’s FOI request falls outside the FOI Act (for example, a decision that a document is not an ‘official document of a minister’) may be reviewed by the Information Commissioner (see paragraph 10.84).

Who can seek review?

10.9 Depending on the type of decision, the following people may apply for an IC review:

where the agency’s or minister’s decision was an access refusal decision (including a decision on charges and a refusal to amend or annotate a record of personal information) – the person who made the FOI request (that is, the FOI applicant) (s 54L(3))

where the decision was to grant access – a third party who is affected by that decision (s 54M(3)(a))

where the decision was made after internal review of the original access refusal decision – the person who made the request for internal review (that is, the original FOI applicant) (s 54L(3))

where the decision was made after internal review of the original decision to grant access – a third party who is affected (s 54M(3)(a)) or the person who made the FOI request (that is, the FOI applicant (s 54M(3)(b))

where the decision was to refuse to extend the period for applying for internal review of an access refusal decision (under s 54B) – the person who was seeking internal review (that is, the original FOI applicant).

10.10 Another person may apply on behalf of the person who made the FOI request or the affected third party (ss 54L(3) and 54M(3)). The Information Commissioner must be satisfied that the other person has authority to act on behalf of the FOI applicant or third party.

Principles of the Information Commissioner review process

10.11 Review by the Information Commissioner of decisions about access to government documents is designed around several key principles:

it is a merit review process

it is intended to be as informal as possible

it is intended to be non-adversarial

it is intended to be timely.

Merit review

10.12 Review by the Information Commissioner is a merit review process. The Information Commissioner does not simply review the reasons given by the agency or minister, but determines the correct or preferable decision in the circumstances. The Information Commissioner can access all relevant material, including material that the agency or minister claims is exempt. The Information Commissioner can also consider additional material or submissions not considered by the original decision maker, including relevant new material that has arisen since the decision was made. For example, for the purpose of deciding whether a document requested by an applicant is conditionally exempt, the Information Commissioner can take account of contemporary developments that shed light on whether disclosure would be contrary to the public interest. However, the Commissioner cannot determine the exempt status of documents that have become documents of an agency or minister after the date of the applicant’s FOI request.[1]

10.13 If the Information Commissioner finds that the original decision was not correct in law or not the preferable decision, the decision can be varied or set aside and a new decision substituted. For example, the Information Commissioner may decide that a document is not an exempt document under the FOI Act or that an access charge was not correctly applied.

An informal process

10.14 IC reviews are intended to be a simple, practical and cost efficient method of external merit review. Most matters will be reviewed on the papers rather than through formal hearings. This is consistent with the objects of the FOI Act, which provides that functions and powers are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost (s 3(4)). The Information Commissioner will also provide appropriate assistance to IC review applicants to make their applications (s 54N(2)). This would not mean helping an applicant to frame their argument but could mean explaining, for example, what particulars they must give in their application for review.

Non-adversarial

10.15 Agencies and ministers must use their best endeavours to assist the Information Commissioner to make the correct or preferable decision in relation to access to information held by the Government (s 55DA). This duty is consistent with the obligation on the Commonwealth and its agencies to act as model litigants – that is, with complete propriety, fairly and in accordance with the highest professional standards as a party to proceedings, including tribunal proceedings.

10.16 All parties are also encouraged to minimise their use of legal representation in IC review proceedings, to reduce formality and costs. The Information Commissioner expects to receive responses from the relevant agency rather than a legal representative, even where the agency chooses to seek legal advice on particular issues.

Timely

10.17 The IC review process is intended to be efficient and lead to resolution as quickly as possible. An early evaluation of the merits of the decision under review will be facilitated through IC review officers considering the primary material and making relevant preliminary inquiries of agencies and ministers.

Procedures in an Information Commissioner review

Parties to an IC review

the principal officer of the agency, or the minister, to whom the FOI access request was made

an affected third party who has received notice of an IC review application under s 54P (discussed below at paragraph 10.31)

a person who is joined by the Information Commissioner to the review proceedings as a person whose interests are affected (discussed below at paragraph 10.33).

Making an application

10.19 An application for Information Commissioner review must be in writing (s 54N), which includes email. It must:

give details of how notices may be sent to the applicant (for example, by providing an email address)

include a copy of the notice of the decision given by the agency or minister under s 26.

10.20 Inclusion of a copy of the s 26 notice will enable the Information Commissioner to readily identify the agency or minister and the matters in dispute. A person will not have received a copy of the decision where notice of a decision is deemed to have been given. In that case, the application should include details of the agency or minister to whom the request was made and state whether the request was an application for an initial decision or for internal review of an agency decision. An IC review applicant who is a third party seeking review of an access grant decision may also not have received a copy of the s 26 statement of reasons given to the FOI applicant. The third party should, however, have been given a written notice of the access grant decision (see Part 8 of these Guidelines), and should provide a copy of that notice with their application.

10.21 The application should also contain particulars of the basis on which the applicant disputes the reviewable decision (s 54N(2)). It will assist prompt handling of the matter if the applicant sets out the following matters:

any grounds on which the applicant disputes the reasons given for a claim that a document is exempt or conditionally exempt

any grounds on which the applicant considers that the public interest in giving access overrides the reasons given for not granting access

if a request has been refused on the ground that it would unreasonably impact on an agency’s resources or a minister’s functions (ss 24 and 24AA) – any reasons why the applicant believes the request would not have that impact.

10.22 The OAIC can provide ‘appropriate assistance’ where an applicant needs help to prepare the review application (s 54N(3)). This may arise, for example, where the applicant has language or literacy difficulties or other factors affect their capacity to prepare an application.

10.23 The application must be delivered to the OAIC (to the address listed in the telephone directory) or sent by prepaid postage or by electronic communication (fax or email) (s 54N(4)).

Time for applying

10.24 An application for IC review must be made within 60 days of notice being given of an access refusal decision (s 54S(1)) or 30 days of notice being given of an access grant decision (s 54S(2)). Further details are below.

10.25 An FOI applicant may apply for IC review of an access refusal decision within 60 days after the day notice of the decision was given under s 26 (s 54S(1)). This time limit also applies to deemed refusals, as notice is deemed to have been given under s 26 on the last day of the initial decision period (s 15AC(3)–see Part 8 of these Guidelines). Where the FOI applicant sought internal review and the agency did not make a decision within 30 days and no extension was granted, the original decision to refuse access is taken to have been affirmed (s 54D–see Part 9 of these Guidelines).

10.26 An affected third party may apply for IC review of an access grant decision within 30 days after the day they were given notice – either under ss 26A(3), 26AA(3), 27(6) or 27A(5), or if the if the agency decision to grant access was made after internal review of the original decision, under s 54C. If the affected third party does not apply for IC review within 30 days, the agency or minister can provide access to the document, unless the Information Commissioner has granted an extension to the affected third party (ss 26A(4), 26AA(4), 27(7) and 27A(6)). The Information Commissioner will notify an agency or minister if an affected third party has applied for an extension of time. A further notice will be provided when the Information Commissioner has made a decision on that application (as noted in paragraphs 10.27–10.29 below, it may take more than two weeks for the Information Commissioner to make a decision). To minimise the possibility of dispute about the propriety or timing of a decision to release information where a third party objects, agencies and ministers are advised to check first with the Information Commissioner as to whether there are any review proceedings in progress.

Extension of time for applying

10.27 An FOI applicant or an affected third party may ask the Information Commissioner for an extension of time to apply for IC review (s 54T(1)). The Information Commissioner may extend the time if satisfied that it is reasonable in all the circumstances to do so, even if the application period has expired (ss 54T(2) and (3)). The applicant should set out the reasons for the delay as part of their application. As a practical matter, an affected third party will not be able to apply for an extension of time if the agency or minister has already given the FOI applicant access to the documents after the time for applying for internal review or IC review expired (see previous paragraph).

10.28 Before granting an extension, the Information Commissioner may require the applicant to give notice of the application to any person the Information Commissioner considers is affected (s 54T(4)). For example, the Commissioner may require the applicant to notify the agency or an affected third party. That person may in turn notify the Information Commissioner in writing that the agency or affected third party opposes the application, and must do so within the time the Information Commissioner specifies (s 54T(5)). Unless there are special reasons to the contrary, the Information Commissioner will allow 14 days for a response.

10.29 The Information Commissioner must give the applicant for the extension and any person opposing the extension a reasonable opportunity to present their cases before determining the extension application (s 54T(6)).

Agency or minister must notify third parties

10.30 The agency or minister must notify an affected third party where an FOI applicant has applied for IC review of a decision to refuse access to a document to which a consultation requirement applies (s 54P). This obligation applies whether the affected third party made a submission or was invited to make a submission but did not under s 26A (documents affecting Commonwealth-State relations), s 26AA (documents affecting Norfolk Island intergovernmental relations), s 27 (business documents) or s 27A (personal privacy) (s 54P(1) – see Part 3 of these Guidelines).

10.31 The agency or minister is required as soon as practicable, to take all reasonable steps to provide this notice(s 54P(2)). A copy of the notice must also be given to the Information Commissioner as soon as practicable (s 54P(3)). This process allows an affected third party to apply to the Information Commissioner to be joined as a party to the review proceeding. The third party would be seeking to support the agency’s or minister’s contention that access should be refused to a document that affects them.

10.32 Section 54Q provided that the Information Commissioner may order on the agency’s or minister’s application that this notice requirement does not apply to business documents (s 27) or documents affecting personal privacy (s 27A). This may be done if the Information Commissioner is satisfied that notification of the IC review would not be appropriate as it could reasonably be expected to:

prejudice the conduct of an investigation of a breach of the law or a failure to comply with a law relating to taxation (for example, if the person who would otherwise be notified is under investigation)

prejudice the enforcement or proper administration of the law in a particular instance

disclose or allow someone to ascertain the existence, identity or non-existence of a confidential source of information, in relation to the enforcement or administration of the law

endanger anyone’s life or physical safety

damage the security, defence or international relations of the Commonwealth (s 54Q(3)).

Joining other parties to the review

10.33 The Information Commissioner may join a person whose interests are affected as a party to an IC review application (s 55A(3)) if that person applies in writing (s 55A(2)).

10.34 This could arise, for example, in a case where the IC review applicant is an affected third party who disagrees with an agency’s or minister’s decision to grant access to a document. In that case, the Information Commissioner may join the original FOI applicant to the review.

10.35 Another example is where an affected third party is not given notice of an IC review application because one of the reasons in s 54Q applies (see paragraph 10.32). If the Information Commissioner, on considering the review application, is not satisfied that the information concerning that person is exempt, the Commissioner may decide to join the person to the review under s 55A(1)(d).

10.36 In some cases, the FOI access decision may have included documents that involve more than one agency. An agency has the option of transferring an access request to another agency under s 16 where appropriate if the other agency agrees. If the agency decides not to transfer the request, the agency is responsible for consulting relevant agencies, both before making a decision and throughout the IC review process. In exceptional circumstances where an agency other than the decision maker applies to be joined as a party to an IC review, the Information Commissioner may decide to grant the application.

Withdrawing an application

10.37 An applicant may withdraw an application for review at any time before the Information Commissioner makes a decision (s 54R(1)). A withdrawn application is taken never to have been made (s 54R(2)). If an application is withdrawn, the Information Commissioner will notify the agency or minister.

The decision under review

10.38 If after an applicant applied for IC review of a deemed decision the Information Commissioner allowed the agency or minister further time to make an actual decision, and the agency or minister did so, the actual decision is substituted for the deemed decision for the purposes of the IC review (s 54Y(2)). At any time during an IC review, an agency or minister may also substitute a deemed or an actual access refusal decision with a decision that is in the applicant’s favour (see paragraph 10.50).

General procedure

10.39 IC reviews are intended to provide a simple, practical and cost efficient system for external merit review. To achieve this aim, the Information Commissioner may conduct a review in whatever way the Commissioner considers appropriate (s 55(2)(a)), and must use as little formality and technicality as possible (s 55(4)(a)). It is intended that most applications will be determined on the basis of the documents and submissions (see paragraph 10.45).

Using alternative dispute resolution methods

10.40 To help resolve applications promptly, the Information Commissioner may use alternative dispute resolution methods or any other appropriate technique (s 55(2)(b)). Alternative dispute resolution methods and early appraisal can clarify at an early stage the issues to be resolved or the information to be provided by either party in support of their claims or submissions.

Participation by various means

10.41 The Information Commissioner may allow a person to participate by any means of communication (s 55(2)(c)). For example, a person may be allowed to participate in a hearing by telephone or video conference, or to provide a written submission. Appropriate arrangements may also be made to assist a person with a disability, such as a hearing impairment.

Obtaining information

10.42 The Information Commissioner may obtain any information from any person and make any inquiries that the Commissioner considers appropriate (s 55(2)(d)). For example, the Information Commissioner may request information about the agency’s decision early in the review process. Those inquiries may help the Information Commissioner in forming a preliminary view about the issues to be addressed or the merit of a decision. The Information Commissioner also has a specific power to make preliminary inquiries in order to determine whether to undertake a review (discussed below at paragraph 10.61) and compulsory information gathering powers (discussed at paragraphs 10.69–10.77). The Information Commissioner could also seek expert assistance from agency staff or another party where documents involve complex or technical issues.

Written directions

10.43 The Information Commissioner may give written directions about the conduct of review proceedings, both generally and in particular reviews (s 55(2)(e)). For example, the Information Commissioner could direct that the publication of certain evidence in a particular case be prohibited or restricted if satisfied the evidence should be kept confidential. More generally, the Information Commissioner could require a decision maker to lodge certain information for the purpose of the review proceedings.

When the reasons for a decision are inadequate

10.44 The Information Commissioner can require an agency or minister to give reasons for their decision if the Commissioner believes the reasons given were inadequate or if no reasons were provided (s 55E). This includes where a decision is deemed to be made and no s 26 statement was prepared. For guidance on preparing good reasons for decisions, see Part 8 of these Guidelines.

Hearings

10.45 Hearings are not intended to be a common part of Information Commissioner reviews, since they can increase contestability, introduce more formality to the process and prolong the matter. Section 55(1) provides that review can be carried out on the documents or other available material if:

the Information Commissioner considers the matter can be adequately determined

the Information Commissioner is satisfied that there are no unusual circumstances that warrant a hearing

none of the parties has applied for a hearing.

10.46 Implicit in that procedure is a presumption that an IC review will be conducted on the papers unless there is a special reason to warrant a hearing.

10.47 Any party may apply to the Information Commissioner for a hearing at any time before a decision is made (s 55B(1)). The Information Commissioner will only decide to hold a hearing if satisfied that there is a special reason to warrant a hearing.

10.48 Hearings must be conducted in public unless the Information Commissioner is satisfied there are reasons to hold the hearing (in whole or part) in private (s 55(5)(a)). This means that part of a hearing may be held in the absence of one or more of the review parties and their representatives where the Information Commissioner considers it necessary to prevent the disclosure of confidential matters.

10.49 A party may be represented by another person at a hearing (s 55C), including a legal representative. For example, an applicant who is disabled or from a non-English speaking background may wish to be represented by an advocate, friend or family member.

Varying a decision in the applicant’s favour before a review is finalised

10.50 After an application is made to the Information Commissioner for review, an agency or minister may vary or substitute an access refusal decision to favour the applicant, whether by giving access to a document, removing the liability to pay a charge or amending a personal record (s 55G(1)).

10.51 The agency or minister must notify the Information Commissioner in writing of the new decision (s 55G(2)(a)). If the variation does not fully resolve the matter to the applicant’s satisfaction, the Information Commissioner must deal with the new decision as though it is the decision for review (s 55G(2)(b)).

Protections when information is supplied

10.52 A claim for legal professional privilege can still apply to a document or information produced for the purpose of an IC review (s 55Y). The act of producing the document does not of itself constitute a waiver of the privilege.

10.53 A person is immune from civil proceedings and any criminal or civil penalty if the person gives information, produces a document or answers a question in good faith for an IC review (s 55Z). The immunity applies whether the information was supplied voluntarily or under a compulsory process (for example, under s 55(2)(d) – see paragraph 10.69).

Evidence by the Inspector-General of Intelligence and Security

10.54 Where a document in an IC review is claimed to be exempt under the national security exemption (s 33 – see Part 5 of these Guidelines), before deciding that the document is not exempt, the Information Commissioner must ask the Inspector-General of Intelligence and Security (Inspector-General) to give evidence on the likely damage if access were granted (ss 55ZA–55ZD). There are similar provisions in relation to AAT proceedings (s 60A). The Inspector-General must comply with the Information Commissioner’s request unless the Inspector-General believes they are not appropriately qualified to give evidence on those matters (s 55ZC).

10.55 This requirement is to assist the Information Commissioner to make a decision through the provision of expert advice. Because the Inspector-General is an independent statutory office holder, the evidence given is not evidence by the agency or minister who made the exemption decision.

10.56 Before hearing evidence from the Inspector-General, the Information Commissioner must hear any evidence or submissions from the agency or minister (s 55ZB(3)). The Information Commissioner is not bound by the Inspector-General’s opinion (s 55ZB(4)).

10.57 The requirement does not apply if the Information Commissioner considers there is sufficient material to affirm the agency’s or minister’s decision to exempt the document.

Onus

10.58 In an IC review in relation to an FOI request (s 15) or an application to have personal records amended (s 48), the agency or minister has the onus of establishing that the decision is justified or that the Information Commissioner should give a decision adverse to the IC review applicant (s 55D(1)). The agency or minister must also bear in mind their obligation to use their best endeavours to assist the Information Commissioner to make the correct or preferable decision (see paragraph 10.15).

10.59 In an IC review of an access grant decision, the affected third party has the onus of establishing that a decision refusing the request is justified or that the Information Commissioner should give a decision adverse to the person who made the request (s 55D(2)).

The Information Commissioner’s options

10.60 After receiving an application for review, the Information Commissioner has two options:

to review the decision if satisfied it is a decision that is reviewable

not to review the decision if satisfied on certain grounds (discussed at paragraph 10.64 below).

Preliminary inquiries

10.61 The Information Commissioner may make preliminary inquiries of the parties to help in determining whether to undertake a review (s 54V). Such inquiries might be made to clarify that the review decision falls within the Information Commissioner’s jurisdiction, for example, or that the application is not frivolous or misconceived.

Who conducts the review?

10.62 An IC review officer will manage the application for review, including undertaking the preliminary assessment (see paragraphs 10.78–10.95). However, the final decision on a review can only be made by the Information Commissioner, the FOI Commissioner or the Privacy Commissioner (see ss 10, 11, 12 and 25(e) of the AIC Act). In practice, most decisions will be made by the FOI Commissioner, unless there is a special reason for the Information Commissioner or the Privacy Commissioner to undertake the review.

Timeframe for a review

10.63 The Act does not specify a time for completion of an IC review. The time taken will depend on a number of factors, including:

the type and range of issues involved in the review

the number and type of documents involved

whether there is a need to refine the scope of the issues the applicant has raised

whether the agency or minister needs to undertake further searches for documents

whether parties other than the agency and the applicant need to be consulted or joined to the review

any new issues the parties have introduced during the review

the time parties take to respond to requests for information or other issues raised by the IC review officer

the extent to which the parties are willing to engage in informal resolution processes (where appropriate).

When the Information Commissioner will not review a matter

10.64 The Information Commissioner has the discretion not to undertake a review, or not to continue a review, if:

the applicant fails to comply with a direction by the Information Commissioner (s 54W(c)), or

if the Information Commissioner is satisfied:

the review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith

the review applicant has failed to cooperate in progressing the application or review without reasonable excuse

the Information Commissioner cannot contact the applicant after making reasonable attempts (s 54W(a))

if the Information Commissioner is satisfied the decision should be considered by the AAT (s 54W(b) – see paragraph 10.67below).

10.65 The circumstances in which an FOI application can be described as ‘frivolous or vexatious’ have been examined in various cases. The circumstances include where it is open to conclude that a series of FOI applications were made to annoy or harass agency staff and none of the applications is capable of conferring a practical benefit on the applicant.[2] See Part 12 of these Guidelines for information about vexatious applicant declarations.

Reviewing part of a matter

10.66 The Information Commissioner may decide to review only part of an IC reviewable decision (see s 54U).

AAT review as an alternative to IC review

10.67 The Information Commissioner can decline to undertake a review if satisfied ‘that the interests of the administration of the [FOI] Act make it desirable’ that the AAT consider the review application (s 54W(b)). It is intended that the Information Commissioner will resolve most applications, but the Commissioner may consider it desirable to have an AAT ruling where, for example, there is an important or contested issue, or an apparent inconsistency between earlier IC decisions and AAT decisions.

Written notice to the parties

10.68 If the Information Commissioner decides not to undertake a review, the Commissioner must give the parties written notice of the decision (s 54X(2)).Where the Information Commissioner has decided it would be desirable for the AAT to undertake the review, the notice must state that the applicant may apply to the AAT for review (s 54X(3)(b)).

The Information Commissioner’s powers to gather information

10.69 The Information Commissioner has a range of compulsory powers to ensure that information can be gathered to allow for a proper review of the merits of a decision. In addition to the power to require an agency or minister to give more adequate reasons for a decision (discussed at paragraph 10.44), the Information Commissioner has the power to:

require a person to produce information and documents

require a minister or the principal officer of an agency to produce a document claimed to be exempt (with some qualification where the claimed exemption relates to national security or Cabinet matters)

order an agency or minister to undertake further searches for documents

require a person to attend to answer questions and to take an oath or affirmation that the answers given will be true.

10.70 Each of these is discussed below. The Information Commissioner’s information gathering powers are similar to those of the AAT, as discussed below.

Producing information and documents

10.71 The Information Commissioner can issue a notice requiring a person to produce information and documents if the Information Commissioner reasonably believes it is relevant to an IC review (s 55R(3)).It is an offence punishable by six months imprisonment to fail to comply with a notice to produce (s 55R(5)). There is a similar offence to fail to comply with a summons to produce issued by the AAT (ss 40 and 61 of the AAT Act). The Information Commissioner may take, copy and take extracts from those documents and hold them as long as necessary (s 55S(1)).

Producing documents claimed to be exempt: general

10.72 The Information Commissioner may require the principal officer of an agency or a minister to produce a document claimed to be exempt, other than a document claimed to be covered by the national security or Cabinet exemption (s 55T(1)). As a general rule, the Information Commissioner will require an agency to provide a copy of all documents that are claimed to be exempt, to enable the Commissioner to undertake merit review of the decision to refuse access (see paragraphs 10.79–10.97). If satisfied the document is exempt, the Information Commissioner must return the documents to the agency or minister (s 55T(3)).

10.73 No person other than the Information Commissioner, the FOI Commissioner, the Privacy Commissioner (if involved in the matter) or a member of the Commissioner’s staff may have access to a document that is claimed to be exempt (s 55T(5)). (The Information Commissioner must take all reasonable steps to ensure members of staff are given appropriate security clearances (s 89P)). The AAT has a similar production power for its proceedings (s 64).

Producing documents claimed to be exempt: national security and Cabinet matters

10.74 Where a document is claimed to be exempt under the national security exemption (s 33) or Cabinet document exemptions (s 34), the Information Commissioner may only require the principal officer of an agency or a minister to produce the document if the Commissioner is not satisfied by affidavit evidence or other evidence that the document is exempt (s 55U(3)). There is a similar provision in s 58E(2) relating to AAT review proceedings. These provisions protect against unnecessary disclosure of sensitive information.

Further searches for documents

10.75 The Information Commissioner may order an agency or minister to undertake further searches for documents, including where access to a document has been granted but not actually given (s 55V(2)). This replicates the powers given to the AAT under s 58A(2).

Attending to answer questions

10.76 The Information Commissioner may require a person to attend to answer questions for the purposes of an IC review (s 55W(1)). The person must be given a written notice that specifies the time and place when the person must attend, with the time to be not less than 14 days after the person is given the notice (s 55W(2)).It is an offence punishable by six months imprisonment to fail to comply with a notice issued by the Information Commissioner (s 55W(3)). There is a similar offence of failing to comply with a summons to appear to give evidence in AAT proceedings (ss 40 and 61 of the AAT Act).

10.77 The Information Commissioner may also require a person who appears before the Commissioner pursuant to a notice to take an oath or affirmation that the answer the person will give will be true (s 55X). It is an offence punishable by six months imprisonment to breach that requirement (for example, if the person refuses to take the oath or affirmation, or knowingly gives false answers) (s 55X(3)).

Steps in the Information Commissioner review process

On receiving a review application

10.78 When an IC review application is received, the IC review officer will check that it is a valid application (see paragraph 10.19). Before undertaking an IC review, the IC review officer will inform the person, agency or minister who made the decision, or if the IC review application concerns an access grant decision, the FOI applicant (s 54Z). The IC review officer will then contact the relevant agency or minister advising them of the review and seeking relevant information (as set out below). Ordinarily the agency will be given a copy of the application for IC review. The IC review officer will also enquire whether the agency is currently undertaking an internal review of the matter under Part VI of the Act. Where the agency advises that an internal review is under way, the IC review officer will ordinarily await the outcome before taking further steps in the IC review process.

Access refusal decision in relation to documents claimed to be exempt (other than a deemed refusal or deemed affirmation)

10.79 When notifying the agency or minister of an IC review application, the IC review officer will ask them to provide within 10 working days a schedule of documents for which exemption is claimed, including those documents claimed to be exempt under s 25. This 10 day period will not be extended other than in exceptional cases, as an agency or minister should normally have prepared such a schedule when making a decision on the FOI access request or notifying the FOI applicant of the decision.

10.80 The schedule needs to be signed by a senior member of the minister’s staff or a senior agency officer, that is, an officer equivalent to an Executive Level or Senior Executive Service officer. Requiring a senior officer to approve the schedule gives an early opportunity for the agency or minister to reconsider the access refusal decision and, if it is considered appropriate, to vary the decision in the applicant’s favour (as permitted by s 55G). This will be a particularly important step where the IC review applicant has not sought internal review, or where the initial access decision was not made by a senior agency officer.

10.81 The schedule must list the documents numbered sequentially and include the following details:

the date of the document

the creator of the document (where known)

a brief description of the contents of the document

a brief statement of the ground of exemption or conditional exemption claimed for the document

where the claim of exemption relates to only part of a document, indicating the part or parts involved.

10.82 Where only a small number of documents are involved, the agency or minister may choose to supply copies of the documents at this first stage. This will help to expedite the review process. In the case of documents from which information has been deleted before release, the agency should supply to the IC review officer copies of both the original document and the edited copy that was released.

10.83 The schedule of documents will be made available to the IC review applicant, and to other parties as considered appropriate. If the agency or minister believes this should not occur in relation to particular documents, the reasons should be spelt out clearly. Any documents that fall within the definition of s 25 (that is, where it would not be appropriate to reveal the existence or non-existence of a document – see Part 3 of these Guidelines) should be listed in a separate schedule clearly marked as confidential.

10.84 A modified review process will be followed if the threshold question to be resolved is whether the applicant’s request falls within the FOI Act. In a straightforward case, the Information Commissioner may be able to decide, without contacting an agency or minister, that the FOI request was made to an agency or for a document to which the FOI Act does not apply. On the other hand, it may be necessary for an IC review officer to contact an agency or minister to seek information about the nature of a document or the agency’s or minister’s response to the applicant. This may be necessary, for example, if the FOI applicant disagrees with a minister’s decision that the document requested is not an official document of the minister, or is a ‘defence intelligence document’.

Access grant decision

10.85 Where an affected third party seeks IC review of an access grant decision, the IC review officer will ask the agency or minister to provide within 10 working days copies of correspondence with the third party, including the documents in dispute if the third party has already seen them. If the documents have not yet been shown to the third party, the agency or minister will be asked to provide a schedule of documents that are proposed to be released. The agency or minister must also provide an explanation of the reasons why it has been decided to release the documents despite the third party’s objections, if those reasons have not been spelt out fully in correspondence to the third party.

10.86 The minister or agency cannot vary the access grant decision once the matter is under IC review (that is, there is no equivalent to s 55G, which applies only to access refusal decisions).

Decision on charges

10.87 Where the decision for which review is sought relates to the imposition of a charge or the amount of a charge (s 53A(e)), the IC review officer will request the agency or minister to provide within 10 working days:

a copy of the letter to the FOI applicant notifying the charge

any further explanation the agency or minister wishes to provide as to why the charge was imposed or how it was calculated, as the case may be.

Refusal to amend or annotate a record of personal information

10.88 If the IC review application concerns a decision refusing to amend or annotate a record of personal information, the IC review officer will have certain information from the applicant about the documents and the reasons the applicant disagrees with the decision. The IC review officer will request the agency or minister to provide within 10 working days:

a copy of the documents that were given to the FOI applicant

the reasons why the agency or minister considers that no amendment should be made under s 50, or the reasons why the requested annotation of records was not made under s 51, as the case may be. Those reasons should have been provided in the notice to the applicant, but the agency or minister may wish to provide additional information in support of its decision.

10.89 The IC review officer may also ask to see associated personal records of the applicant, such as the applicant’s personal file, where that may assist consideration of the applicant’s request.

Failure to provide all documents

10.90 Where the IC review applicant claims that the agency or minister has failed to provide access to all relevant documents (s 53A(c)), the IC review officer may ask the agency or minister to provide within 10 working days the details of the searches undertaken.

Deemed refusal or deemed affirmation of original decision

10.91 A person may apply for IC review when there is a deemed refusal of an FOI access request. This will occur when the agency or minister has not made a decision within 30 days of the FOI request or within the relevant period if it has been extended (s 15AC). After a deemed refusal, the agency or minister should consider applying in writing to the Information Commissioner for further time to consider the matter (s 15AC(4)). This avenue is available only once. The Information Commissioner may then grant an appropriate extension, subject to any conditions considered appropriate (ss 15AC(5) and (6)).

10.92 The Information Commissioner may also ask the agency or minister to provide reasons (s 55E). A third option that the Information Commissioner may employ, if no extension of time was sought or granted, is to ask the agency or minister to outline in writing the number of documents potentially within the scope of the FOI request, a description of the type of documents, the reason for the delay and an indication of how long it might take to come to a position on which documents are claimed to be exempt.

10.93 The same considerations apply when there has been a deemed affirmation of an agency’s decision following the expiration of time to complete an internal review. The agency should consider whether to seek an extension of time from the Information Commissioner to complete the internal review (s 54D(3)). Where the agency does not do so, or the Information Commissioner declines to grant an extension, the processes outlined above in paragraphs 10.79–10.90 above will apply.

Preliminary assessment by an IC review officer

10.94 The IC review officer will consider the IC review application and the material supplied by the agency or minister. If the FOI applicant is applying for IC review of an access refusal decision, the IC review officer will also check that the agency or minister has notified any affected third parties (unless otherwise ordered under s 54Q) and has provided a copy of the notice (s 54P).

10.95 The IC review officer will consider whether any parties should be joined to the review. After considering the particulars given by the IC review applicant, the review officer may seek more information from the applicant if necessary, for example, by discussing any relevant background matters or clarifying issues in dispute. The IC review officer will also consider the decision maker’s statement of reasons under s 26. If the statement is considered to be inadequate, the agency or minister may be asked to provide an adequate statement of reasons within 28 days or such other time as is specified (s 55E). Contact will often be by telephone rather than formal correspondence, in keeping with the aim of keeping the process as informal and quick as possible.

Next steps

10.96 After preliminary assessment by the IC review officer, the OAIC has a number of options which include the following:

requiring the agency or minister to provide documents for which an exemption claim has been made, if these have not been provided to the IC review officer earlier (ss 55T and 55U – see paragraphs 10.72–10.74)

issuing a notice requiring any person to provide information or documents that are relevant to an IC review (s 55R – see paragraph 10.71)

requiring the agency or minister to conduct a further search for documents (s 55V)

inviting or requesting the agency or IC review applicant to provide further oral or written submissions on an issue, particularly where new material has become available

by written notice requiring a person to appear to answer questions (s 55W), and to provide answers on oath or affirmation (s 55X)

making a non-binding appraisal to vary the agency’s decision in favour of the IC review applicant: the agency or minister will ordinarily be given 10 working days to consider whether to vary the agency decision in the applicant’s favour under s 55G

giving effect to an agreement between the parties (s 55F – see paragraph 10.98)

holding a hearing at which the parties will have an opportunity to present further evidence or submissions (see paragraphs 10.45–10.49)

proceeding to make a final decision (s 55K).

Providing documents to the Information Commissioner

10.97 Ordinarily, the Information Commissioner will require agencies to provide copies of documents in hard copy or in scanned form as PDF documents. Where there is a large number of documents or in other appropriate circumstances, the OAIC may arrange for its staff to attend the agency’s premises to view and make copies of the documents as required. Further information on appropriate ways to provide documents to the office, including through electronic lodgement, will be provided in the future.

The Information Commissioner’s decision

Where the review parties reach agreement

10.98 At any stage during an IC review, the Information Commissioner may resolve an application in whole or in part by giving effect to an agreement between the parties (s 55F). Before making the decision, the Information Commissioner needs to be satisfied that the terms of the written agreement would be within the powers of the Information Commissioner and that all parties have agreed to the terms.

Where the review parties do not reach agreement

10.99 If the parties do not reach an agreement, and unless the IC review applicant withdraws their application under s 54R, the Information Commissioner must make a decision after reviewing the matter. The Information Commissioner has three options:

to affirm the decision of the agency or Minister (s 55K(1))

to vary the decision of the agency or Minister (s 55K(2))

to set aside the decision of the agency or Minister and make a fresh decision (s 55K(3)).

10.100 These are full merit review powers.

Written reasons to be given

10.101 The Information Commissioner must give written reasons of the decision to all the parties to the review (ss 55K(1) and (4)) and must publish the decision in a manner that makes it publicly available (s 55K(8)). The statements of reasons for OAIC decisions are published on the OAIC website at www.oaic.gov.au. The OAIC’s published decisions will not include any material which has been found to be exempt or which would give information as to the existence or non-existence of a document under s 25(1) (s 55K(5)). In addition, where appropriate to protect against the unreasonable disclosure of personal information about an applicant or third party, including details of their identity, the Information Commissioner will not include such personal information in the decision published on the website.

Exempt documents

10.102 If the Information Commissioner finds a document to be exempt, the Commissioner cannot order that access be given to the exempt material (s 55L). This includes a document which:

has been found to be exempt because a specific exemption under Part IV Division 2 of the Act applies

is conditionally exempt (under Part IV Division 3) and access to the document would be contrary to the public interest

is a document of a person, body or agency exempted under the Act (s 7 – see Part 5 of these Guidelines).

10.103 A similar restriction is placed on the AAT under s 58(2).

Requiring records to be amended

10.104 Part V of the FOI Act enables a person to apply for amendment or annotation of incorrect personal information that an agency uses for administrative purposes (see Part 7 of these Guidelines).

10.105 The Information Commissioner’s decision can include a recommendation that an amendment be made to a record of personal information (subject to two limitations):

Opinions – The Information Commissioner may only recommend amendment of a record that relates to an opinion if satisfied:

the opinion was based on a mistake of fact

the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion (s 55M(1)).

Court or tribunal decision– The Information Commissioner cannot recommend that a record of a decision under an enactment by a court, tribunal, authority or person be amended (s 55M(2)(a)). Nor can the Commissioner recommend that a record be amended if that would involve determining an issue that a person either is, or could be, entitled to have decided in another process – by an agency (on internal review), the Commissioner, a court or tribunal (s 55M(2)(b)). While the scope of that limitation is not entirely clear, it would include, for example, where the Information Commissioner must make another decision first (such as deciding a request for access to the relevant documents), or where an agency must first determine a person’s eligibility for a benefit.

10.106 The AAT is similarly limited in its power to recommend or require amendments of personal records (s 58AA).

Enforcement of the Information Commissioner’s decision

10.107 An agency or minister must comply with an IC review decision (s 55N). If an agency or minister fails to comply, the Information Commissioner or the review applicant may apply to the Federal Court for an order directing them to comply (s 55P(1)). The application can only be made after the period an agency or minister has to apply to the AAT for review of the Information Commissioner’s decision has expired, that is, 28 days (s 29(2) of the AAT Act). There is a similar scheme for enforcing determinations of the Privacy Commissioner (ss 58 and 62 of the Privacy Act).

Correcting errors in the Information Commissioner’s decision

10.108 The Information Commissioner has a discretionary power to correct obvious errors in his or her decision, either on his or her own initiative or on application by a review party (s 55Q).

Federal Court proceedings

deciding questions of law referred by the Information Commissioner (s 55H)

on appeal on a question of law from the Information Commissioner’s decision (s 56).

10.110 The Federal Court may also direct an agency or minister to comply with the Information Commissioner’s decision (see paragraph 10.107).

Referring questions of law

10.111 The Information Commissioner may refer a question of law to the Federal Court of Australia at any time during the review (s 55H), and must act consistently with the Federal Court’s decision (s 55H(5)). This power is intended to ensure that the Information Commissioner makes decisions which are correct in law and that his or her decisions can finally resolve a matter. The AAT has a similar power under s 45 of the AAT Act.

10.112 If a reference is made to the Federal Court, the Information Commissioner must send all relevant documents and information in his or her possession to the Court (s 55J).

Appeal to the Federal Court

10.113 A review party has the right to appeal to the Federal Court on a question of law from a decision of the Information Commissioner (s 56). A similar right is given to a party to an AAT proceeding (s 44 of the AAT Act).

10.114 A party may choose to apply to the Federal Court rather than seek merit review in the AAT if, for example, the party believes the Information Commissioner wrongly interpreted and applied the FOI Act. If the Federal Court remits a decision to the Information Commissioner for reconsideration, a party could later apply to the AAT for review of the Information Commissioner’s subsequent decision.

10.115 Section 56A(1)(b) provides that in determining the matter, the Federal Court may make findings of fact if its findings of fact are not inconsistent with findings of fact made by the Information Commissioner (other than findings resulting from an error of law), and it appears to the Court to be convenient. In determining whether it is convenient, the Court is to have regard to all the following factors:

the extent to which it is necessary for facts to be found

the means of establishing those facts

the expeditious and efficient resolution of the whole of the matter to which the IC review relates

the relative expense to the parties if the Court, rather than the Information Commissioner, makes the findings of fact

the relative delay to the parties if the Court, rather than the Information Commissioner, makes the findings of fact

whether any of the parties considers that it is appropriate for the Court, rather than the Information Commissioner, to make the findings of fact

such other matters (if any) as the Court considers relevant.

10.116 There are similar provisions where the Federal Court proceedings arise from an appeal from an AAT decision (s 44 of the AAT Act).

Review by the AAT

When can a person apply to the AAT?

the Information Commissioner’s decision to affirm, vary or set aside a decision after the Information Commissioner has undertaken a review (ss 55K and 57A(1)(a))

the agency’s or minister’s decision where the Information Commissioner has decided not to undertake a review on the basis that it is desirable that the AAT undertakes the review (s 57A(1)(b))

the Information Commissioner’s declaration of the person as a vexatious applicant (s 89N).

10.118 A person cannot apply to the AAT for review of the Information Commissioner’s decision not to undertake or continue a review. A complaint may be made to the Commonwealth Ombudsman under the Ombudsman Act 1976.

Time limit

10.119 An application to the AAT must be made within 28 days after the day on which the person is given the Information Commissioner’s decision (s 29(2) of the AAT Act). The same time limit applies where the Information Commissioner declines to consider the matter on the grounds that it would be better dealt with by the AAT (s 57A(2)).

Parties to the AAT proceedings

10.120 The parties to an AAT review application are:

the person who applies to the AAT for review (s 60(3)(a))

the original FOI applicant, that is, the person who made the request for access to documents or for amendment or annotation of a personal record (s 60(3)(b))

the principal officer of the agency or the minister to whom the request was made (s 60(3)(c))

any other person who is made a party to the proceeding by the AAT (s 60(3)(d)). The AAT has a discretionary power under s 30(1A) of the AAT Act to join a person whose interests are affected by the decision.

10.121 The Information Commissioner is not a party to the proceedings in the AAT, except in relation to review under s 89N of a declaration that a person is a vexatious applicant. Consequently the Information Commissioner does not play any role in the proceedings in defending his or her decision. In deciding the correct or preferable decision, the AAT will be guided by the submissions of the parties, who will ordinarily be the FOI applicant and the agency or minister who made the IC reviewable decision. As noted below in paragraph 10.129, s 61A of the FOI Act modifies relevant provisions of the AAT Act to spell out the role in the proceedings of the agency or minister who made the IC reviewable decision. Further, s 58(1) of the FOI Act provides that the AAT may decide any matter in relation to the FOI request that could be decided by the agency or minister.

10.122 In relation to review of a declaration that a person is a vexatious applicant (see Part 12 of these Guidelines), note 3 to s 89N expressly refers to s 30 of the AAT Act, which sets out the parties to AAT proceedings. Section 30 states that the decision maker (in this case, the Information Commissioner) will be a party to the proceedings. The Information Commissioner’s role would be to assist the AAT and not to be a protagonist in the proceedings.[3] An agency or minister could also apply to the AAT to be made a party to those proceedings (s 30(1A) of the AAT Act).

Notifying third parties

10.123 An agency or minister must notify affected third parties if an FOI applicant seeks AAT review of a decision to refuse access to third party information (s 60AA). This is the same as the notice requirement where an application is made for an IC review. An affected third party may apply to become a party to the AAT proceedings under s 30(1A) of the AAT Act (s 60(3)(d)).

10.124 The AAT may order that an agency or minister does not need to give notice to an affected third party of an AAT review application if it would not be appropriate to do so in the circumstances (s 60AB, preserving the effect of former ss 59(3), 59(4), 59A(3) and 59A(4)). An agency or minister must apply to the AAT for an order to be excused from the requirement to give notice (s 60AB(2)).

10.125 Section 60AB(3) provides the circumstances to which the AAT must have regard when determining if the requirement to give notice is not appropriate. Those circumstances are whether notifying the affected third party would or could reasonably be expected to:

prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation (for example, if a document includes information about a person under criminal investigation)

prejudice the enforcement or proper administration of the law in a particular instance

disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law

endanger the life or physical safety of any person

cause damage to the security, defence or international relations of the Commonwealth.

Onus

10.126 In AAT proceedings to review an FOI decision, the agency or minister who received the access request or the application for amendment of personal records has the onus of establishing that a decision that is adverse to the FOI applicant should be given. The agency or minister has that onus when:

the agency or minister seeks review of the Information Commissioner’s decision (for example that access should be given to a document because an exemption does not apply) – in this case the AAT will review a decision of the Information Commissioner (s 61(1)(a))

the FOI applicant seeks review of a decision made by the Information Commissioner (for example affirming that an exemption applies to a document and that access may be refused) – in this case the AAT will review a decision of the Information Commissioner (s 61(1)(b))

the FOI applicant applies for IC review of a decision and the Information Commissioner declines on the ground that it is desirable that the AAT undertake review – in this case the AAT will review a decision of the agency or minister (s 61(1)(b)).

10.127 The FOI applicant does not bear an onus in either IC review or AAT review.

10.128 If an affected third party is a party to the proceeding, the third party has the onus of establishing that a decision refusing to give access to the document is justified, or the AAT should give a decision adverse to the person who made the request (s 61(2)).

Modifications to references in the AAT Act

10.129 Because agency and ministerial FOI access decisions are now reviewed by the Information Commissioner and the AAT’s role is to review decisions by the Information Commissioner, various provisions of the AAT Act that referred to ‘the person who made the decision’ are now taken to mean either the agency, minister or the person who made the IC reviewable decision, or each of the review parties, as the context requires. These modifications are listed in s 61A.